# C_2019337EN.01000201.xml

| 7.10.2019 | EN | Official Journal of the European Union | C 337/2 |
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7.10.2019

EN

Official Journal of the European Union

C 337/2

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Appeal brought on 15 May 2019 by Ralph Pethke against the judgment of the General Court (Fourth Chamber) delivered on 5 March 2019 in Case T-169/17 Ralph Pethke v European Union Intellectual Property Office

(Case C-382/19 P)

(2019/C 337/02)

Language of the case: German

Parties

Appellant: Ralph Pethke (represented by: H. Tettenborn, Rechtsanwalt)

Other party to the proceedings: European Union Intellectual Property Office

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court of the European Union of 5 March 2019 in Case T-169/17; |
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set aside the judgment of the General Court of the European Union of 5 March 2019 in Case T-169/17;

| — | annul Transfer Decision PERS-AFFECT-16-134 of the Executive Director of the European Union Intellectual Property Office (EUIPO) and award compensation for the material and non-material damage caused by the unlawful transfer; |
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annul Transfer Decision PERS-AFFECT-16-134 of the Executive Director of the European Union Intellectual Property Office (EUIPO) and award compensation for the material and non-material damage caused by the unlawful transfer;

| — | in the alternative, set aside the judgment and refer the case back to the General Court. |
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in the alternative, set aside the judgment and refer the case back to the General Court.

Grounds of appeal and main arguments

The subject of the present appeal is the judgment of the General Court by which that court dismissed the appellant’s action against Transfer Decision PERS-AFFECT-16-134 of the Executive Director of the European Union Intellectual Property Office.

The appellant bases his appeal on the following three grounds:

| 1. | Infringement of Article 7 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) (1) and Article 36 of the Statute of the Court of Justice of the European Union
  The appellant claims that the General Court erred in law in its application of Article 7 of the Staff Regulations. Downgrading from the post of Director of the Operations Department to that of Senior Expert without any career prospects and without any evaluation or disciplinary procedure protecting the appellant’s rights does not constitute lawful redeployment, but is unlawful demotion. The 2014 amendment of the Staff Regulations developed the prospect of promotion for Directors above Grade AD 12 into a right to be enjoyed by such officials. The appointing authority cannot unilaterally withdraw that right without a proper evaluation or disciplinary procedure. Since 2014, according to the law, it has no longer been possible to consider a post as a Director to be equivalent to a post as a Senior Expert without promotion prospects.
  Further, the General Court makes reference to case-law on redeployment under Article 7 of the Staff Regulations and the equivalence of posts, but goes on to draw the wrong conclusions from it.
  Finally, the General Court made an error in law and an administrative error by failing to come to a comprehensive decision on the second plea in law, namely on the unlawful demotion of the appellant on 10 October 2016 without simultaneous transfer to a new post, which occurred only on 17 October 2016. For that very reason, this does not come within the meaning of a transfer under Article 7 of the Staff Regulations (paragraphs 49-106 of the judgment). |
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1.

Infringement of Article 7 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) (1) and Article 36 of the Statute of the Court of Justice of the European Union

The appellant claims that the General Court erred in law in its application of Article 7 of the Staff Regulations. Downgrading from the post of Director of the Operations Department to that of Senior Expert without any career prospects and without any evaluation or disciplinary procedure protecting the appellant’s rights does not constitute lawful redeployment, but is unlawful demotion. The 2014 amendment of the Staff Regulations developed the prospect of promotion for Directors above Grade AD 12 into a right to be enjoyed by such officials. The appointing authority cannot unilaterally withdraw that right without a proper evaluation or disciplinary procedure. Since 2014, according to the law, it has no longer been possible to consider a post as a Director to be equivalent to a post as a Senior Expert without promotion prospects.

Further, the General Court makes reference to case-law on redeployment under Article 7 of the Staff Regulations and the equivalence of posts, but goes on to draw the wrong conclusions from it.

Finally, the General Court made an error in law and an administrative error by failing to come to a comprehensive decision on the second plea in law, namely on the unlawful demotion of the appellant on 10 October 2016 without simultaneous transfer to a new post, which occurred only on 17 October 2016. For that very reason, this does not come within the meaning of a transfer under Article 7 of the Staff Regulations (paragraphs 49-106 of the judgment).

| 2. | Distortion of facts
  Not only did the General Court base the judgment under appeal on facts that were not set out in the case file, but it also based its decision on facts that were different from those set out in that file.
  Additionally, in the present case, it is evident that the General Court carried out no assessment of the evidence. Had it done so, it would have had to assess the credibility of the statements of the present respondent.
  Furthermore, the assessment carried out by the General Court of the appellant’s actions in relation to his duty to report manifestly unlawful measures deprives Articles 21a(1) and 22 of the Staff Regulations of all practical effect. |
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2.

Distortion of facts

Not only did the General Court base the judgment under appeal on facts that were not set out in the case file, but it also based its decision on facts that were different from those set out in that file.

Additionally, in the present case, it is evident that the General Court carried out no assessment of the evidence. Had it done so, it would have had to assess the credibility of the statements of the present respondent.

Furthermore, the assessment carried out by the General Court of the appellant’s actions in relation to his duty to report manifestly unlawful measures deprives Articles 21a(1) and 22 of the Staff Regulations of all practical effect.

| 3. | Unlawful assessment of the allegations of psychological harassment and breach of the duty to have regard for the welfare of officials, and Article 36 of the Statute of the Court of Justice of the European Union
  The General Court rejected the allegation that the measures of the Executive Director between 10 October 2016 and 17 October 2016 constituted psychological harassment on the basis that they were an infringement of the law currently in force. The breach of the duty to have regard for the welfare of officials and the allegation of psychological harassment are inextricably linked to the unlawful decisions to demote and redeploy taken between 10 October 2016 and 17 October 2016. Contrary to the assertions of the General Court, a ‘pattern of behaviour’ is not a prerequisite for the existence of psychological harassment under Article 12a(3) of the Staff Regulations. Further, the General Court did not comment on the breach of the duty to have regard for the welfare of officials in the form of the public defamation of the appellant’s professional achievements which occurred when he was redeployed. |
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3.

Unlawful assessment of the allegations of psychological harassment and breach of the duty to have regard for the welfare of officials, and Article 36 of the Statute of the Court of Justice of the European Union

The General Court rejected the allegation that the measures of the Executive Director between 10 October 2016 and 17 October 2016 constituted psychological harassment on the basis that they were an infringement of the law currently in force. The breach of the duty to have regard for the welfare of officials and the allegation of psychological harassment are inextricably linked to the unlawful decisions to demote and redeploy taken between 10 October 2016 and 17 October 2016. Contrary to the assertions of the General Court, a ‘pattern of behaviour’ is not a prerequisite for the existence of psychological harassment under Article 12a(3) of the Staff Regulations. Further, the General Court did not comment on the breach of the duty to have regard for the welfare of officials in the form of the public defamation of the appellant’s professional achievements which occurred when he was redeployed.

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(1)  The Staff Regulations of Officials of the European Union are established by Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition II, 1968(I), p. 30), as amended by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 287, p. 15).

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